WSR 10-04-008

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed January 22, 2010, 9:36 a.m. , effective February 22, 2010 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: The purpose of these rules is to consider making clarifying changes and consolidate terms to simplify the rules. The impact of the rules is to make the rules clearer, easier to read, understand, and apply.

Citation of Existing Rules Affected by this Order: Repealing WAC 388-76-10185; and amending WAC 388-76-10035, 388-76-10036, 388-76-10040, 388-76-10090, 388-76-10105, 388-76-10110, 388-76-10200, 388-76-10415, 388-76-10505, 388-76-10550, 388-76-10860, 388-76-10970, 388-76-10975, and 388-76-10985.

Statutory Authority for Adoption: RCW 70.128.040.

Adopted under notice filed as WSR 09-21-070 on October 16, 2009.

Changes Other than Editing from Proposed to Adopted Version: Changes are shown with new language underlined and deleted text lined through.


WAC 388-76-10105 Application -- Change of ownership. (1) Under this section, "control of the provider" means the possession, directly or indirectly, of the power to direct the management, operation and/or policies of the adult family home, whether through ownership, voting control, by agreement, by contract or otherwise.

(2) A change of ownership of an adult family home requires both a new license application and a new license.

(3) A change of ownership occurs when there is a change in:

(a) The provider; or

(b) The control of a provider.

(4) Events which constitute a change of ownership include, but are not limited to:

(a) The form of legal organization of the adult family home is changed, such as when an adult family home forms:

(i) A partnership;

(ii) A corporation;

(iii) A limited liability company; or

(iv) When it merges with another legal organization.

(b) The adult family home transfers business operations and management responsibility to another party, whether or not there is a partial or whole transfer of real property, personal property, or both.

(c) Two people are both licensed as a married couple or domestic partners to operate an adult family home and an event, such as a separation, divorce, or death, results in only one person operating the home.

(d) Dissolution of a business partnership that is licensed to operate the adult family home.

(e) If the adult family home is a corporation and the corporation:

(i) Is dissolved;

(ii) Merges with another corporation, resulting in a change in the control of the provider; or

(iii) Consolidates with one or more corporations to form a new corporation;

(iv) Whether by a single transaction or multiple transactions within a continuous twenty-four month period, transfers fifty percent or more of its shares to one or more of the following:

(A) New or former shareholders; or

(B) Present shareholders, each having less than five percent of the shares before the initial transaction.

(f) Any other event or combination of events that results in a substitution, elimination, or withdrawal of the provider's control of the adult family home.

(5) The new owner:

(a) Must correct all deficiencies that exist at the time of the ownership change;

(b) Is subject to the provisions of chapters 70.128, 70.129, 74.34 RCW, this chapter and other applicable laws and regulations;

(c) Must obtain a new license from the department before the transfer of ownership; and

(d) Must not begin operation of the adult family home until the department has granted the license.

(6) The home must notify each resident, in writing at least thirty days before the effective date of the ownership change.

(7) In order to prevent disruption to residents, currently licensed providers may request in writing that the department give priority processing to an applicant seeking to be licensed as the new provider for the adult family home. Currently licensed providers seeking a license for a new adult family home may request application processing priority in order to minimize or prevent disruption to current residents. The must:

(a) Make the request to the department in writing, including the reason for changing the ownership of the home; and

(b) Explain how or why the reason for the change is beyond the control of the home.


WAC 388-76-10200 Adult family home -- Staff -- Availability -- Contact information. In addition to other licensing requirements for staff availability, the adult family home must:

(1) Ensure at least one caregiver is present in the home whenever one or more residents are present in the home, unless the resident has been assessed as being safe when left unattended for a specific period of time, and that information is included in the negotiated care plan;

(2) Designate an experienced, staff member who is capable of responding on behalf of the adult family home by phone or pager at all times.

(3) Give residents the telephone or pager number for the contact required in subsection (2) of this section;

(4) Ensure the provider, entity representative or resident manager is readily available to:

(a) Each resident;

(b) Residents' representatives;

(c) Caregivers; and

(d) Authorized state staff.


The changes were made because of comments received and to clarify the requirements.


SUMMARY OF COMMENTS RECEIVED THE DEPARTMENT CONSIDERED ALL THE COMMENTS. THE ACTIONS TAKEN IN RESPONSE TO THE COMMENTS, OR THE REASONS NO ACTIONS WERE TAKEN, FOLLOW.
WAC 388-76-10105, there was a comment about clarifying whether the adult family home license was for the home or for the person or entity.

Under subsection (7) there is a conflict since it refers to licensed adult family home providers seeking to change a licensed adult family home.

No change was made. The current definition of adult family home includes two parts: (1) A residential home in which a person or entity are licensed to provide ... care ...; and (2) ... any person or entity who has been granted a license to operate an adult family home. The license is for both the specific home and for the person or entity. Any change in either the home or person/entity requires a change of ownership application.

A change was made in response to this comment by using the language in RCW 70.128.064.

WAC 388-76-10200(1) "The residents in my adult family home do not always require or want staff to be available in the AFH to meet their needs. They do not have needs that require staff all of the time. They want time alone in their home." A change was made. An exception was added to reflect that if a resident's assessment and care plan specified that the resident was safe to be left unattended and for a specified period of time the home could do so.

A final cost-benefit analysis is available by contacting Lisa N.H. Yanagida, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-2589, fax (360) 438-7903, e-mail yanagln2@dshs.wa.gov.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 14, Repealed 14.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 14, Repealed 14.

Date Adopted: January 22, 2010.

Susan N. Dreyfus

Secretary

4142.8
AMENDATORY SECTION(Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)

WAC 388-76-10035   License requirements--Multiple family home providers.   To be licensed to operate more than one adult family home, the applicant must have:

(1) Evidence ((that the provider or entity representative has successfully completed)) of successful completion of the forty-eight hour residential care administrator's training to meet the ((related)) applicable requirements of chapter 388-112 WAC.

(2) Operated an adult family home in Washington for at least one year without a significant violation of chapters 70.128, 70.129 or 74.34 RCW, this chapter or other applicable laws and regulations; and

(3) The ability to operate more than one home.

(4) The following plans for each home the applicant intends to operate:

(a) A twenty-four hour a day, seven day a week staffing plan;

(b) A plan for ((how the provider entity representative, or resident manager will manage)) managing the daily operations of each home; and

(c) A plan for emergencies, deliveries, staff and visitor parking.

(5) A credit history considered if the history relates to the ability to provide care and services.

(6) An ((applicant,)) entity representative or a ((qualified)) resident manager at each home who is responsible for the care of each resident at all times.

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, 388-76-10035, filed 10/16/07, effective 1/1/08.]


AMENDATORY SECTION(Amending WSR 09-03-030, filed 1/12/09, effective 2/12/09)

WAC 388-76-10036   License requirements--Multiple adult family home management.   When there is more than one home licensed to a provider ((or entity)), the adult family home must ensure that:

(1) Each home has one person responsible for managing the overall delivery of care to all residents in the home;

(2) The designated responsible person is the provider, entity representative or a ((qualified)) resident manager; and

(3) Each responsible person is designated to manage only one adult family home at a given time.

[Statutory Authority: RCW 70.128.040. 09-03-030, 388-76-10036, filed 1/12/09, effective 2/12/09.]


AMENDATORY SECTION(Amending WSR 09-03-030, filed 1/12/09, effective 2/12/09)

WAC 388-76-10040   License requirements--Qualified person must live-in or be on-site.   (1) The adult family home provider or entity representative must:

(a) Live in the home; or

(b) Employ or contract with a ((qualified)) resident manager who lives in the home and is responsible for the care and services of each resident at all times.

(2) The provider, entity representative, or ((qualified)) resident manager is exempt from the requirement to live in the home if:

(a) The home has twenty-four hour staffing coverage; and

(b) A ((qualified)) staff person who can make needed decisions is always present in the home.

[Statutory Authority: RCW 70.128.040. 09-03-030, 388-76-10040, filed 1/12/09, effective 2/12/09. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, 388-76-10040, filed 10/16/07, effective 1/1/08.]


AMENDATORY SECTION(Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)

WAC 388-76-10090   Application -- Entity application.   An entity submitting an application must:

(1) Include a list of all facilities or homes in which the applicant or persons affiliated with the applicant, managerial employee, or owner of five percent or more of the entity provided care and services to children or vulnerable adults within the last ten years;

(2) Designate an entity representative who:

(a) Is responsible for the daily operations of the adult family home;

(b) Will be considered the department's primary contact person; and

(c) May act as both the entity representative and the resident manager in only one home.

(3) Designate a ((qualified)) resident manager for the home if the entity representative is not the designated resident manager in subsection (2)(c) of this section.

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, 388-76-10090, filed 10/16/07, effective 1/1/08.]


AMENDATORY SECTION(Amending WSR 09-03-030, filed 1/12/09, effective 2/12/09)

WAC 388-76-10105   Application -- Change of ownership.   (1) Under this section, "control of the provider" means the possession, directly or indirectly, of the power to direct the management, operation and/or policies of the adult family home, whether through ownership, voting control, by agreement, by contract or otherwise.

(2) A change of ownership of an adult family home requires both a new license application and a new license.

(((2))) (3) A change of ownership occurs when there is a change in:

(a) The provider ((or entity provider)); or

(b) The control of ((an entity)) a provider.

(((3))) (4) Events which constitute a change of ownership include, but are not limited to:

(a) The form of legal organization of the ((provider)) adult family home is changed, such as when ((a provider)) an adult family home forms:

(i) A partnership;

(ii) A corporation;

(iii) ((An association)) A limited liability company; or

(iv) ((A dissolution or merger of a licensed entity)) When it merges with another legal organization.

(b) The ((provider or entity provider)) adult family home transfers business operations and management responsibility to another party, whether or not there is a partial or whole transfer of ((adult family home)) real property ((and/or)), personal property ((assets)), or both.

(c) Two people are both licensed as a married couple or domestic partners to operate an adult family home and an event, such as a separation, divorce, or death, results in only one person operating the home.

(d) ((An event dissolves the)) Dissolution of a business partnership((, if)) that is licensed to operate the ((provider or entity provider is in a business partnership)) adult family home.

(e) If the ((provider or entity provider)) adult family home is a corporation and the corporation:

(i) Is dissolved;

(ii) Merges with another corporation ((which is the survivor)), resulting in a change in the control of the provider; or

(iii) Consolidates with one or more corporations to form a new corporation;

(iv) Whether by a single transaction or multiple transactions within a continuous twenty-four month period, transfers fifty percent or more of ((the stock)) its shares to one or more of the following:

(A) New or former ((stockholders)) shareholders; or

(B) Present ((stockholders)) shareholders, each having less than five percent of the ((stock)) shares before the initial transaction.

(f) Any other event or combination of events ((which)) that results in a substitution, elimination, or withdrawal of ((or control of)) the ((provider or entity)) provider's control of the adult family home.

(((4))) (5) The new owner:

(a) Must correct all deficiencies that exist at the time of the ownership change;

(b) Is subject to the provisions of chapters 70.128, 70.129, 74.34 RCW, this chapter and other applicable laws and regulations;

(c) Must obtain a new license from the department before the transfer of ownership; and

(d) Must not begin operation of the adult family home ((as the new owner, provider or entity provider)) until the department has granted the license.

(((5))) (6) The home must notify each resident, in writing at least thirty days before the effective date of the ownership change.

(((6) If a currently licensed provider or entity provider seeking to change ownership wants the department to give priority to processing an application to minimize or prevent disruption of residents that live in the existing home, the applicant must:

(a) Make the request to the department in writing, including the reason for changing the ownership of the home; and

(b) Explain how or why the reason for the change is beyond the control of the home)) (7) In order to prevent disruption to residents, currently licensed providers may request in writing that the department give priority processing to an applicant seeking to be licensed as the new provider for the adult family home.

[Statutory Authority: RCW 70.128.040. 09-03-030, 388-76-10105, filed 1/12/09, effective 2/12/09. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, 388-76-10105, filed 10/16/07, effective 1/1/08.]


AMENDATORY SECTION(Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)

WAC 388-76-10110   Application -- Change of location or address.   (1) A change of the adult family home location or address requires both a new license application and a new license.

(2) The home must not start operations of the home at a new location until the department has granted the license for the new location.

(3) The home must notify each resident or resident representative, in writing at least thirty days before the effective date of the change of the home location or address.

(((4) If a currently licensed provider or entity representative, seeking to change the home location or address wants the department to give priority to processing an application to minimize or prevent the disruption of residents that live in the existing home, the applicant must:

(a) Make the request in writing, including the reason for changing the location of the home to the department; and

(b) Explain how or why the reason for change is beyond the control of the home.))

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, 388-76-10110, filed 10/16/07, effective 1/1/08.]


AMENDATORY SECTION(Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)

WAC 388-76-10200   Adult family home -- Staff -- Availability -- Contact information.   In addition to other licensing requirements for staff availability, the adult family home must:

(1) Ensure at least one caregiver is present in the home whenever one or more residents are present in the home, unless the resident has been assessed as being safe when left unattended for a specific period of time, and that information is included in the negotiated care plan;

(2) Designate an experienced, ((capable)) staff member who is capable of responding on behalf of the ((provider or entity representative:

(a))) adult family home by phone or pager((;

(b))) at all times ((including:

(i) When no residents are present in the home; and

(ii) When the provider entity representative and residents are on vacation or away from the home)).

(((2))) (3) Give residents the telephone or pager number for the contact required in subsection (((1))) (2) of this section;

(((3))) (4) Ensure the provider, entity representative or resident manager is readily available to:

(a) Each resident;

(b) Residents' representatives;

(c) Caregivers; and

(d) Authorized state staff.

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, 388-76-10200, filed 10/16/07, effective 1/1/08.]


AMENDATORY SECTION(Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)

WAC 388-76-10415   Food services.   The adult family home must:

(1) Ensure ((the provider, entity representative and all staff meet)) that the safe food handling training requirements of chapter 388-112 WAC are met; and

(2) Serve meals:

(a) In the home where each resident lives; and

(b) That accommodate each resident's:

(i) Preferences;

(ii) Food allergies and sensitivities;

(iii) Caloric needs;

(iv) Cultural and ethnic background; and

(v) Physical condition that may make food intake difficult such as being hard for the resident to chew or swallow.

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, 388-76-10415, filed 10/16/07, effective 1/1/08.]


AMENDATORY SECTION(Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)

WAC 388-76-10505   Specialty care--Admitting and retaining residents.   The ((provider or entity representative)) adult family home must not admit or keep a resident with specialty care needs, such as developmental disability, mental illness, or dementia as defined in WAC 388-76-10000, if the provider, entity representative, resident manager and staff have not completed the specialty care training required by chapter 388-112 WAC.

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, 388-76-10505, filed 10/16/07, effective 1/1/08.]


AMENDATORY SECTION(Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)

WAC 388-76-10550   Resident rights--Adult family home staffing--Notification required.   The adult family home must provide the following information to prospective residents and current residents:

(1) Information about the provider, entity representative and resident manager, if there is a resident manager:

(a) Availability in the home, including a general statement about how often he or she is in the home;

(b) Education and training relevant to resident caregiving;

(c) Caregiving experience;

(d) His or her primary responsibilities, including whether he or she makes daily general care management decisions; and

(e) How to contact the provider, entity representative or resident manager when he or she is not in the home.

(2) Information about a licensed practical nurse or registered nurse, if there is one, who is in any way involved in the care of residents:

(a) Who the licensed practical nurse or registered nurse is employed by;

(b) The specific routine hours that the licensed practical nurse or registered nurse is on-site, if they are on-site routinely;

(c) His or her primary responsibilities, including whether he or she makes daily general care management decisions;

(d) The nonroutine times when the licensed practical nurse or registered nurse will be available, such as on-call; and

(e) A description of what the provider or entity representative will do to make available the services of a licensed nurse in an emergency or change in a resident's condition.

(3) A statement indicating whether the provider, ((entity provider,)) caregiver or staff is qualified or willing to become qualified to perform nurse delegation as allowed under state law.

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, 388-76-10550, filed 10/16/07, effective 1/1/08.]


AMENDATORY SECTION(Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)

WAC 388-76-10860   Fire drill plan and procedures for emergency evacuation--Required.   The adult family home must:

(1) Have ((a fire drill plan and procedures for the)) an emergency evacuation ((of)) plan, including a fire drill plan and procedures for evacuating all residents from the adult family home; and

(2) Not admit ((and)) or keep residents ((the provider or entity representative)) who cannot safely ((evacuate from the adult family home)) be evacuated.

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, 388-76-10860, filed 10/16/07, effective 1/1/08.]


AMENDATORY SECTION(Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)

WAC 388-76-10970   Remedies--Specific--Condition(s) on license.   (1) The department may impose reasonable conditions or limits on ((the)) a new or current license.

(2) Conditions or limits the department may impose on a license include, but are not limited to, the following:

(a) Correction of deficiencies within a specified time;

(b) Training related to the deficiencies;

(c) Limits on the type of residents the ((provider or entity representative)) adult family home may admit or serve;

(d) Discharge of any resident when the department finds discharge is needed to meet that resident's needs or for the protection of other residents;

(e) Change in license capacity;

(f) Removal of the adult family home's designation as a specialized home;

(g) Prohibition of access to residents by a specified person; and

(h) Demonstration of ability to meet financial obligations necessary to continue operation.

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, 388-76-10970, filed 10/16/07, effective 1/1/08.]


AMENDATORY SECTION(Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)

WAC 388-76-10975   Remedies--Specific--Civil penalties.   (1) The department may impose civil penalties of not more than one hundred dollars per day per violation except that:

(a) Fines up to one thousand dollars can be issued under RCW 70.128.150 for willful interference with a representative of the long-term care ombudsman ((per RCW 70.129.150)); and

(b) Fines up to three thousand dollars can be issued under RCW 74.39A.060 for retaliation against a resident, employee, or any other person making a complaint, providing information to, or cooperating with, the ombudsman, the department, the attorney's general office, or a law enforcement agency ((per RCW 74.34.060(7))).

(2) When the ((provider or entity provider)) adult family home fails to pay a fine ((when due)) under this chapter when due, the department may, in addition to other remedies, withhold an amount equal to the fine plus interest, if any, from any contract payment due to the provider ((or entity provider)) from the department.

(3) Civil monetary penalties are due twenty-eight days after the ((provider, entity representative)) adult family home or the owner or operator of an unlicensed adult family home is served with notice of the penalty unless the ((provider or entity representative)) adult family home requests a hearing in compliance with chapter 34.05 RCW ((and)), RCW 43.20A.215, and this chapter. If the hearing is requested, the penalty becomes due ten days after a final decision in the department's favor is issued. ((Interest accrues beginning)) Thirty days after the department serves the ((provider or entity provider)) adult family home with notice of the penalty, interest begins to accrue at a rate of one percent per month as ((per)) authorized by RCW 43.20B.695.

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, 388-76-10975, filed 10/16/07, effective 1/1/08.]


AMENDATORY SECTION(Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)

WAC 388-76-10985   Remedies--May extend to multiple homes.   (1) ((When the department finds that)) If a licensed provider ((or entity representative)) also operates an unlicensed adult family home, the department may impose a remedy or remedies listed in WAC 388-76-10940 on the ((provider or entity representative and the provider's or entity representative's)) licensed adult family home or homes.

(2) ((When the department finds that)) If violations ((existing)) in an adult family home are of such nature as to present a serious risk or harm to residents of other homes operated by the same provider ((or entity representative)), ((and after the department investigates other homes licensed by the same provider or entity representative)) the department may impose remedies on those other homes.

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, 388-76-10985, filed 10/16/07, effective 1/1/08.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 388-76-10185 Employment -- Certain criminal history--Permitted.

Washington State Code Reviser's Office